Petition for Writ of Certiorari — Ali Al-Maqablh, Petitioner v. Kentucky

Supreme Court briefNov 1, 2019

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NO.

IN THE

SUPREME COURT OF THE UNITED STATES

ALI AL-MAQABLH,

Petitioner,

COMMONWEALTH OF KENTUCKY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

KENTUCKY CIRCUIT COURT FOR THE 12th

JUDICIAL DISTRICT (COUNTY OF TRIMBLE)

PETITION FOR A WRIT OF CERTIORARI

MICHAEL R. SLAUGHTER

Counsel for the Petitioner

P.O. Box 32

WESTPORT, KY 40077

502-225-5889

attny4u2@hotmail.com

QUESTIONS PRESENTED

The Petitioner, Ali Al-Maqablh, saw bruises on his child’s face. When

he reported them to Kentucky’s Child Protective Services, he was charged,

tried, convicted, and sentenced to six months of imprisonment and more than

$1200 in fines in a jury trial in a rural Kentucky district. Kentucky ranks

highest in the nation in incidents of child abuse.

Incredibly, the state

prosecutes citizens who report suspected child abuse for filing a false police

report. Kentucky is a recipient of federal funds under the Child Abuse

Prevention and Treatment Act (CAPTA). That federal law requires states,

including Kentucky, to enact immunity laws that shield reporters of

suspected child abuse from civil and criminal liability. Kentucky codified,

such an immunity statute, which gave it the ability to qualify it for federal

funds.

In 1974, Congress enacted CAPTA in an effort to curb child neglect

and abuse and “create a unified focus for preventing and responding to

instances of child abuse and neglect.” (CAPTA, P.L. 93-247). As a

requirement for establishing eligibility for federal grants under CAPTA,

states are required to provide immunity from prosecution for individuals

making good-faith reports of known or suspected instances of child abuse or

neglect. (42 U.S.C. § 5106a(b)(2)(B)(vii) (2016)). States are also required to

implement procedures for receiving and responding to allegations of abuse or

neglect in an attempt to ensure children’s safety. Id. In satisfying these

requirements, Kentucky enacted “immunity” and “reporting” statutes

codified as Kentucky Revised Statutes (KRS) 620.010-050 also known as

CAPTA laws.

Unfortunately, Kentucky does not recognize immunity as a defense to

criminal liabilities, even though that defense is specifically codified in its

statutes. The legal process employed by the state has the effect of not

shielding reporters of suspected child abuse from criminal liability. While at

the same time that Kentucky is ignoring its immunity statutes, it continues

to be the recipient of more than 400 million dollars in federal fund under

CAPTA. These legal shortcomings are inherent in Kentucky law and require

the intervention of this Court. In particular, while KRS 620.050, specifically

enacted to protect a reporter of suspected child from criminal and civil

liability, a current Kentucky Supreme Court’s decision disallows immunity

as a defense in criminal cases.

These failures are multilayered in nature. First, Kentucky prosecutes

reporters of suspected child abuse as a Class-A misdemeanor, which carries

up to one year of imprisonment, under unrelated statutes.

Due to a

procedural limitation in Kentucky appellate rules, misdemeanor convictions

are not reviewable as Matter-Of-Right in Kentucky Appellate Courts and

that glaring issue has remained off the radar for decades. Second, because

CAPTA funds are extremely essential to Kentucky governmental operations,

it is widely believed that the appellate court’s refusal to address these issues

is motivated in an attempt to shield Kentucky from potential financial harm.

Third, under a Kentucky Supreme Court Precedent (Commonwealth v.

Farmer, Appendix F), criminal defendants invoking immunity as a defense

have no constitutional right to an evidentiary hearing to establish the factual

basis of that defense. Fourth, under that same precedent, appellate courts in

Kentucky are deprived of the constitutional power and jurisdiction to review

the denial of an immunity defense in criminal cases. Fifth, even if evidentiary

hearings were allowed, they would be pointless because, as the case at bar

exemplifies,

under

another

Kentucky

Supreme

Court

precedent

(Commonwealth v. Bishop 245 S. W. 3d (KY, 2008), Kentucky’s trial courts are

deprived of the constitutional power to dismiss charges prior to trial

(Appendix A, D). Even though Bishop grants such a power in limited cases,

CAPTA-based immunity is not one of those cases. Sixth, as a precedent set

by the case at bar, Bishop now deprives Kentucky trial courts of the authority

to direct a verdict of acquittal but instead requires the jury to resolve

questions of law such as immunity. Seventh, as another precedent set by this

case, the current law in Kentucky disregards the venue entitlement under

the Sixth Amendment as interpreted by this Court in United States v.

Johnson, 323 U.S. 273, 276 (1961), United States v. Travis, 364 U.S. 631

(1961) and relies on the “felt effect” jurisprudence rather than the actual

location of the crime to determine the proper venue for purposes of

prosecuting false statements. Simply put, Kentucky law deprives criminal

iii

defendants, who invoke immunity as a statuary and constitutional

entitlement, their right to be prosecuted in the venue of the alleged crime,

and their right to acquittal as a matter of law. The questions presented:

1) Whether CAPTA-based immunity falls within the narrow exception

to the rule against interlocutory appeals and whether it meets the standards

under the Collateral Order Doctrine.

2) Whether a state violates federal law and the U.S. Constitution when

it deprives its trial courts of the authority to summarily dismiss a

misdemeanor charge on a defense of immunity invoked under CAPTA and

when it deprives its courts of the authority to address a pretrial

constitutional and statutory entitlement granted under an act of the U.S.

Congress or when it deprives trial courts of the authority to direct a verdict

of acquittal.

3) Whether a state violates the U.S. Constitution when it prosecutes a

crime of false reporting via a criminal warrant that is devoid of the element

of venue in a jurisdiction where the effect of the crime is felt rather than

where the statement was filed or made.

PARTIES TO THE PROCEEDINGS BELOW

Ali Al-Maqablh was the Defendant in Kentucky District Court for

Trimble County, the Appellants in the Kentucky Circuit Court for Trimble

County, and the Petitioner for discretionary review before the Kentucky

Court of Appeals and before the Kentucky Supreme Court.

The Commonwealth of Kentucky was the Plaintiff in the Kentucky

District Court for Trimble County, the Appellee for the Kentucky Circuit

Court for Trimble County, and the Respondent in a petition for

discretionary review before the Kentucky Court of Appeals and the

Kentucky Supreme Court.

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS BELOW . . . . . . . . . . . . . . . . . . . v

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. The Petitioner’s Case in the State’s Trial Court . . . . . . . . . . 4

2. Appeal in the State’s Appellate Courts . . . . . . . . . . . . . . . . . 6

REASONS FOR GRANTING THE PETITION . . . . . . . . . . . . . . . . . . . 7

I. THE STATE COURT’S OPINION CRIMINALIZES

THE INTENT OF THE U.S. CONGRESS . . . . . . . . . . . . . . . . . . 8

II.THE STATE COURT’S OPINION INVITES

CONSTITUTIONAL INFRACTION AND

ENDANGERS PROTECTED RIGHTS . . . . . . . . . . . . . . . . . . . . 9

III. CERTIORARI WILL CLARIFY WHTHER

DENYING IMMUNITY EXTENDED UNDER

CAPTA IS APPELABLE AS AN EXCEPTION

TO THE COLLATERAL ORDER DOCTORINE . . . . . . . . . . . . 11

IV. CERTIORARI WILL FORTIFY THE RIGHTS

OF INDIVIDUALS WHO REPORT SUSPECTED

CHILD ABUSE AGAINST RETALIATORY CONDUCT

BY AGGRIEVED PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

APPENDIX

Appendix A: Opinion of the Kentucky Circuit Court in Al-Mqablh v.

Commonwealth (June, 13 2018) . . . . . . . . . . . . . . . . . . . . . . . . . App. 1

Appendix B: Order of the Kentucky Supreme Court denying a motion

for discretionary review (June, 5 2019) . . . . . . . . . . . . . . . . . . . . . App. 4

Appendix C: Order of the Kentucky Court of Appeals denying a motion

for discretionary review (February, 7 2019) . . . . . . . . . . . . . . . . App. 5

Appendix D: Order of the Kentucky trial Court denying immunity in

Al-MAQABLH v. Commonwealth (December 27, 2016) . . . . . . . App. 6

Appendix E: Order of the Kentucky trial Court denying Petitioner’s

motion challenging venue in Commonwealth v. Al-Maqablh (December

27, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 8

Appendix F: Opinion of the Kentucky Supreme Court in

Commonwealth v. Farmer reversing the Kentucky Court of Appeals

and barring interlocutory appeals challenging the denial of immunity

(June, 5 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 10

Appendix G: Opinion of the Kentucky Court of Appeals in Farmer v.

Commonwealth granting a review of interlocutory appeals involving a

question of immunity (June, 5 2018) . . . . . . . . . . . . . . . . . . . . . . App. 25

vii

TABLE OF AUTHORITIES

CASES

PAGES

Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009) . . . . . . . . . . . .13

Cohen v. Beneficial Industrial Loan Corp. 337 U.S. (1949). . . . . . . . . . . . . . . . . 16, 17

Commonwealth v. Bishop 245 S. W. 3d (KY, 2008 . . . . . . . . . . . . . . . . . . . . . . . 1, 7,12

Commonwealth v. Farmer 423 S.W.3d 690 (2014). . . . . . . . . . . . . . . . . . . 1, 4,5,12, 15

Coopers & Lybrand v. Livesay, 437 U. S. (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Flanagan v. United States, 465 U.S. (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

J. S. v Berla, 456 S. W. 3d (Ky. App. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Mitchell v. Forsyth, 472 U.S. (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15, 18

Morgan v Bird, 289 S.W. 3d (KY App 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Norton Hospital. v. Peyton, 381 S.W.3d (Ky. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . .13

Nixon v. Fitzgerald, 457 U.S. (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Rogers v. Commonwealth 285 S.W. 3d 755 (KY 2009) . . . . . . . . . . . . . . . . . . . . . . . 13

Stein v. U.S., 532 A.2d (D.C. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Johnson, 323 U.S. 273, 276 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Travis, 364 U.S. 631 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

White v. Norton Healthcare, Inc., 435 S.W.3d (Ky. App. 2014). . . . . . . . . . . . . . . . 13

UNITED STATES CODES AND STATUTES:

18 U.S.C. § 1001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

28 U.S.C. § 1254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 5106a(b)(2)(B)(vii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 19

KENTUCKY STATUTES:

KRS 452.550 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

KRS 519.040 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,6

KRS 620.030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

KRS 620.050 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,4,11,12,17,18

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Ali Al Maqablh (“Maqablh”) respectfully petitions for a writ

of certiorari to review the opinion of the Kentucky Circuit Court for the 12th

Judicial District (County of Trimble).

OPINIONS BELOW

The opinion of the Kentucky Circuit Court is unpublished and attached

herein as Appendix A. The order of the Kentucky Supreme Court denying

discretionary review is unpublished and attached here as Appendix B. The

order of the Kentucky Court of Appeals denying discretionary review is

unpublished and attached herein as Appendix C. The order of the Kentucky

District Court (trial court) denying immunity is unpublished and attached

herein as Appendix D. The order of the Kentucky trial court denying the

Petitioner’s motion to transfer venue is unpublished and attached here as

Appendix E. The Opinion of the Kentucky Supreme Court barring

interlocutory appeals from an order denying immunity is published as

Commonwealth v. Farmer, 423 S.W.3d 690 (2014) and attached here as

Appendix F. The Opinion of the Kentucky Court of Appeals allowing

interlocutory appeals from an order denying immunity for a criminal

defendant is unpublished and attached here as Appendix G. The Opinion of the

Kentucky Supreme Court barring pretrial dismissal is published as

Commonwealth v. Bishop 245 S. W. 3d (KY, 2008).

JURISDICTION

The Court has jurisdiction pursuant to 28 U.S.C. § 1257 and 28 U.S.

Code § 1254(1). The Kentucky Circuit Court issued its opinion affirming on

June 13, 2018. The Kentucky Supreme Court denied Maqablh’s petition for

discretionary review on June 5, 2019. Application to extend the time to file the

petition was granted by Justice Sotomayor on September 6, 2019, under docket

number 19A261. This Petition is due on or before November 2, 2019.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent provisions of the Child Abuse Prevention and Treatment

Act of 1974 as amended in 2016 are contained in 42 U.S.C. § 5106a Subsection

(b)(2)(B)(vii) states:

[states’ plan submitted under paragraph (1) of

the act shall contain] provisions for immunity from

civil or criminal liability under State and local laws

and regulations for individuals making good

faith reports of suspected or known instances

of child abuse or neglect, or who otherwise provide

information or assistance, including medical

evaluations or consultations, in connection with

a report, investigation, or legal intervention pursuant

to a good faith report of child abuse or neglect;

Kentucky Revised Statute 620.050(1) reads:

Anyone acting upon reasonable cause in the

making of a report or acting under KRS 620.030 to

620.050 in good faith shall have immunity from

any liability, civil or criminal, that might

otherwise be incurred or imposed. Any such

participant shall have the same immunity with

respect to participation in any judicial proceeding

resulting from such report or action. However, any

person who knowingly makes a false report and

does so with malice shall be guilty of a Class A

misdemeanor. (emphasis added)

Kentucky Revised Statute KRS 519.040 reads:

(1) A person is guilty of falsely reporting an incident

when he:

(a) Knowingly causes a false alarm of fire or other

emergency to be transmitted to or within any

organization, official or volunteer, that deals with

emergencies involving danger to life or property; or

(b) Reports to law enforcement authorities an

offense or incident within their official concern

knowing that it did not occur; or

information allegedly relating to an offense or

incident within their official concern when he

knows he has no information relating to such

offense or incident; or

(d) Knowingly gives false information to any law

enforcement officer with intent to implicate

another; or

(e) Initiates or circulates a report or warning of an

alleged occurrence or impending occurrence of a

fire or other emergency under circumstances likely

to cause public inconvenience or alarm when he

knows the information reported, conveyed or

circulated is false or baseless.

(2) Falsely reporting an incident is a Class A

misdemeanor.

Kentucky Revised Statute KRS 452.550 reads:

Where an offense is committed partly in one and

partly in another county, or if acts and their effects

constituting an offense occur in different counties,

the prosecution may be in either county in which

any of such acts occurs.

STATEMENT OF THE CASE

1. The Petitioner’s Case in the State’s Trial Court

The Petitioner, had been charged with 2 counts of false reporting and

one count harassment for reporting injuries he observed on his child’s face.

After Kentucky state workers determined the report to be accurate, they

documented these injuries and opened an investigation. Subsequently, a

disgruntled private citizen managed to press the charges underlying this

petition via a rural Kentucky prosecutor in an unrelated district. The charges

were initiated even before the state workers begun their investigations via a

string of similarly-scripted criminal summons lacking probable cause, venue,

and factual sufficiency.

At the early stages of proceedings, the Petitioner invoked his right to be

immune from prosecution under Kentucky’s CAPTA law, KRS 620.050. In

response, the Kentucky prosecutors denied that injuries existed and, on that

basis, they sought to have the Petitioner motion for immunity denied. Under a

Kentucky precedent (Commonwealth v. Farmer, Appendix F), the trial court

refused to hold an evidentiary hearing to address that inquiry and summarily

denied the Petitioner’s motion holding, inter alia, that the court lacked

authority to dismiss misdemeanor charges prior to trial. (Appendix D). The

court recognized certain exceptions to that rule but held that CAPTA immunity

was not one of them. Id. Under Farmer, the Kentucky Supreme Court issued

a sweeping bar to interlocutory appeals from an order denying a criminal

defendant a defense of immunity. Subsequently, the Petitioner was denied the

opportunity to challenge such dismissal via direct appeal. The Petitioner then

challenged the venue of the trial arguing that the criminal summons lacked

that element and that no statements, false or otherwise, had been submitted,

filed, or received in that district. The trial court denied that motion as well

without holding an evidentiary hearing and without establishing the facts. The

trial court held that the effect of the false statement was felt in that District.

(Appendix E).

The Petitioner was required to await trial to establish the factual basis

of his immunity defense, which defeated the purpose of immunity statute

altogether. At trial, Kentucky exhibited nothing but exculpatory evidence,

including pictures showing injuries, state reports proving that the report of

suspected abuse was accurate and true, and state workers’ testimonies that

foreclosed any and all grounds for prosecution. Instead of dropping the charges,

however, Kentucky’s position quickly shifted to allege that CAPTA law

requires certain knowledge prior to making a report of suspected child abuse.

Then, to make matters worse, after these facts became known to the trial

Court, Ali moved to dismiss the criminal charges but the court emphatically

denied that motion reciting its previous holding that it lacked authority to

dismiss charges and that Petitioner’s fate is in the Jury’s hand.

Kentucky instructed the jury [contrary to CAPTA] that a reporter of

child abuse not having certain knowledge is liable under another unrelated

Kentucky statute KRS 519.040. Thereafter, Kentucky’s argument became that

KRS 620.050 dictated that a lack of certain knowledge in making a report of

child abuse exposes the reporting source to criminal liability and in such cases,

the burden of proof then shifts to the defendant. For that, Kentucky’s evidence

was limited to showing that the injuries occurred but that the Petitioner “did

not know that they were a result of abuse.” At the conclusion of the trial, the

Petitioner was convicted on all charges regardless of any evidence of

culpability. On January 23, 2018, the trial court sentenced the Petitioner to

180 days of imprisonment and $1256 in fines and cost.

2. Appeal in The State’s Appellate Courts

The Petitioner timely appealed the trial court’s decisions to the

Kentucky Circuit Court as prescribed by Kentucky Rule 72. On Appeal, the

Circuit Court declared that it chose to adopt the prosecution’s views, which

declared, inter alia, that a report of child abuse is deemed false unless it is

based on certain knowledge. Even though the Petitioner had been charged and

tried under an unrelated statute, the prosecution argued that the issue of

immunity was resolved by the jury. In adopting these views, the Circuit Court

summarily affirmed the trial court’s ruling and incorrectly held, inter alia, that

the trial court lacked authority to direct a verdict of acquittal and that the

issue of immunity was resolved properly (Appendix A). In formulating its

opinion, the Circuit Court incorrectly cited the Kentucky Supreme Court ruling

in Commonwealth v. Bishop 245 S. W. 3d (KY, 2008), which selectively

prohibits trial courts from dismissing indictments prior to trial. The two and a

half pages, which make up the Circuit Court’s ruling, lacks clarity and fell far

short of the required scrutiny under the standards of de novo reviews.

Following that, the Petitioner moved the Circuit Court to expand on, or

reconsider, that erroneous opinion. The Circuit Court refused to hear that

motion holding that error-correction mechanisms are unavailable to appeals in

Circuit Court. A timely motion for discretionary review was filed in the Court

of Appeals, which was denied on February 7, 2019 (Appendix C). A timely

motion for discretionary review was also filed in the state court of last resort,

the Kentucky Supreme Court, which was also denied on June 5, 2019

(Appendix B).

It is worth mentioning that the Kentucky Circuit Court’s opinion

revealed that the appellate judge had also presided over the case as a

substitute trial judge. While this is a common practice in rural America, it

furthers an inherent conflict of interest that characterizes the small-town

justice.

REASONS FOR GRANTING THE PETITION

Certiorari should be granted for 4 reasons.

THE STATE COURT’S OPINION

INTENT OF THE U.S. CONGRESS

CRIMINALIZES

THE

The Single Appellate Judge issued a sweeping opinion that criminalizes

the reporting of suspected child abuse and deprives trial courts and citizens of

their constitutional entitlement. The opinion of the Kentucky Circuit Court is

a final judgment rendered by the highest state court in which a decision could

be had and, as the current law, it exposes millions of Kentucky children to

harm, abuse, and jeopardizes the wellbeing of children in Kentucky, the

highest state in incidents of child abuse.

At this point this Court represents the only hope for Kentucky children.

While this case demonstrates an egregious example of a miscarriage of justice;

and while it explains, in some ways, Kentucky’s vast increase in rates of

incarceration and extreme sentencing guidelines1, the purpose of this petition

is not particularly seeking a vindication. A favorable resolution will not

alleviate the Petitioner’s suffering since he has completed his sentence. The

Petitioner is advancing this Petition to help Kentucky children and remove this

bad precedent. The fact that this case is before this Court is a natural

progression caused by the procedural evolution of the Kentucky Appellate

Court’s in this matter. A Certiorari will help Kentucky children in more ways

According to the U.S. Department of Justice, Kentucky has the ninth highest rate of incarceration

in the nation. See https://www.bjs.gov/content/pub/pdf/p16.pdf

than this petition asserts. In addition to holding the responsible accountable,

it will address the federal government frustration with Kentucky in regard to

permanency and protection. As mentioned above, even though Kentucky ranks

worst in the nation in rates of child abuse, it remains to be the undeserved

recipient of CAPTA funds.

Likewise, a review by this Court will alert other states that have enacted

such void statutes for the sole purpose of qualifying for federal funds to prefect

their governance. A review by this Court will also address the repeated refusal

to address these issues by Kentucky’s intermediate and high appellate courts.

The fact that Kentucky prosecutors repeatedly sidestep CAPTA laws

altogether indicates that the scheme is deeply rooted in Kentucky’s politics;

one that is motivated by saving Kentucky from financial harm and the

discontinuation of CAPTA funds. Should this Court decide not to review this

case, it must know that Kentucky appellate courts will not address this legal

conundrum, which is the proximate reason behind Kentucky’s alarming rates

of child abuse.

II.

THE STATE COURT’S OPINION INVITES CONSTITUTIONAL

INFRACTION AND ENDANGERS PROTECTED RIGHTS

The Kentucky Circuit Court violated the United States Constitution,

Federal and Kentucky laws and controlling U.S. Supreme Court precedents,

and did so in five areas of law: (1) it affirmed a lower court position that

reporting child abuse based on suspicion is a crime not protected by immunity

extended by the state under an act of the United States Congress; (2) it held

that immunity is not a question of law but a question of material facts to be

resolved only by the jury not the court; (3) it held that a citizen who is charged

with a misdemeanor crime in a state court pursuant to a summons authorized

by a state judge has no constitutional rights to challenge the charge prior to

trial and must face a jury trial; (4) it held that a trial court lacks authority to

summarily dismiss a misdemeanor charge on grounds of immunity extended

by the state under an act of the United States Congress; (5) it held that a trial

court has no authority to direct a verdict of acquittal when the underlying

conduct is only questionable.

An integral part of this case is also the Kentucky Supreme Court’s

jurisprudence, which directly influenced both of Kentucky Courts’ opinions

which held that state immunity under CAPTA is (1) not an established right;

(2) a criminal defendant invoking this defense has no constitutional right to a

pretrial evidentiary hearing or (3) a right to challenge the denial of that

defense in appellate courts. Furthermore, by failing to address the issue of

venue regarding the crime of false statement, the Circuit Court affirmed and

endorsed a statewide practice that a crime of false statement should be tried

in a jurisdiction where “the effect of the crime” is felt rather than where the

statement was filed or made.

The Kentucky Circuit Court’s erroneous opinion as to each of those areas

of law raises questions of exceptional importance meriting this Court’s

immediate intervention and review. Because the Kentucky Circuit Court’s

opinion represents the current Kentucky law, particularly as it pertains to

reporting suspected child abuse, it is impacting the substantial rights of

millions of children across Kentucky and threatens their wellbeing. In

addition, it deprives 4.5 million Kentucky citizens of a constitutional right to a

valid defense.

The facts underlying this case will explain why Kentucky ranks highest

in the nation in rates of child abuse. In a newly issued report by the U.S.

Department of Health and Human Services, Children’s Bureau, Kentucky was

determined to be the highest state in incidents of child abuse. 2 Not only that,

the same report found that Kentucky rates at more than double the national

average. Id.

III.

CERTIORARI WILL CLARIFY WHETHER DENYING

IMMUNITY, EXTENDED UNDER CAPTA, IS APPEALABLE

AS AN EXCEPTION TO THE COLLATERAL ORDER

DOCTRINE

Third, a review by this Court will clarify CAPTA-based immunity and

whether it falls within the narrow exception to the rule against interlocutory

appeals. As mentioned above, Kentucky’s appellate courts don’t review

immunity in criminal cases via applications for discretionary review, bar

interlocutory criminal appeals, and hold that immunity is non-reviewable on

appeal because it is a shield from prosecution and therefore it is forever lost.

The U.S. Congress enacted CAPTA as a preventive measure to address

the issue of child neglect and abuse. Kentucky enacted KRS 620.030-50 to

https://www.acf.hhs.gov/sites/default/files/cb/cm2017.pdf

qualify for these federal monies. Under this law reporting child abuse, even if

based on suspicion and belief, is mandatory and failure to report is considered

a crime. At the same time, as in the case at bar, Kentucky also prosecutes

individuals making reports based on suspicion and belief depending on who

and where the individuals are involved.

While the Kentucky Supreme Court has not issued an opinion in this

case, it is responsible for impeding the application of immunity and has directly

and indirectly influenced the trial court’s decision and the Circuit Court’s

opinion. The Kentucky Supreme Court’s failure to recognize immunity as an

exception to the bar on pretrial dismissal under Bishop, its holding in Farmer

(see Appendix F) that evidentiary hearings are not a constitutional right, and

its bar on interlocutory appeals taken by a defendant for denying his immunity

in Farmer are some of the reasons that produced this sweeping legal stalemate

that violates a defendant’s constitutional rights and an act of the U.S.

Congress.

KRS 620.050 was enacted as a condition and an incentive imposed by

the federal government for the states to qualify for federal funds earmarked

for permanency and protection of minors. See 42 U.S.C. §5106a(b)(2)(B)(vii)

(2010). The declared purpose of that statute is to shield reporters of suspected

child abuse not only from liability but also from prosecution both civil and

criminal. KRS 620.050(1) reads:

Anyone acting upon reasonable cause in the

making of a report or acting under KRS 620.030 to

620.050 in good faith shall have immunity from any

liability, civil or criminal, that might otherwise be

incurred or imposed. Any such participant shall have

the same immunity with respect to participation in

any judicial proceeding resulting from such report or

action. However, any person who knowingly makes a

false report and does so with malice shall be guilty of

a Class A misdemeanor. See KRS 620.050(1).

The statutory text is clear that it grants immunity from criminal

liability, both imminent and imposed. So far, Kentucky Appellate Courts have

only reviewed CAPTA-based immunity in civil cases. (See e.g., Norton

Hospital. v. Peyton, 381 S.W.3d (Ky. 2012); J. S. v Berla, 456 S. W. 3d 19 at 23

(Ky. App. 2015), and Morgan v Bird, 289 S.W. 3d 222 (KY App 2009)). In all

cases reviewed, the Kentucky Supreme Court and the Kentucky Court of

Appeals have both held that immunity is a bar from prosecution and a shield

from the burdens of litigation and should be invoked at the earliest stage of the

proceeding. (See also Rodgers v. Comm., 285 S.W.3d 755 (Ky. 2009), White v.

Norton Healthcare, Inc., 435 S.W.3d 68, 75 (Ky. App. 2014)). Both courts have

also held that denying immunity is an exception to appealable judgments as

defined by Rule of 54.3 (See e.g. Breathitt County Bd. of Educ. v. Prater, 292

S.W.3d 883 (Ky. 2009)).

While the statutory text addresses criminal prosecution, Kentucky

Courts’ rejection of the applications for discretionary review leaves lower

Kentucky’s Rules of Civil Procedure mirror Federal Rules of Civil Procedure.

courts without guidance and Kentucky citizens without defined rights. The

Kentucky legislature is aware of this legal stalemate and yet continues to be

silent on an issue that not only endangers children but also invites judicial

abuse and gives jurists, prosecutors, and law enforcement officers unbridled

discretion.

By criminally charging citizens who report suspected child abuse based

on a subjective belief, Kentucky violates federal law, an act of the U.S.

Congress, and due process guaranteed by the U.S. Constitution. In so doing,

Kentucky also risks the wellbeing and furthers the endangerment of more than

a million child under its jurisdiction. In addition, by enacting moot statutes

for purposes of qualifying for federal funds while prosecuting the very conduct

these statutes were meant to encourage defines absurdity. By depriving

citizens of the right to invoke CAPTA immunity as a defense to a criminal

liability, the right to address that defense via evidentiary hearings, and the

right to appeal the denial of that right, Kentucky unlawfully deprives citizens

of an established right extended through the act of the U.S. Congress, which

strikes at the heart of the rule of law and is in direct conflict with the United

States Constitution.

This Court's jurisprudence has long been that immunity is not only an

entitlement to be free from the burdens of defending the action, but also an

order denying a substantial claim of immunity is immediately appealable prior

to a final judgment.

(See Mitchell v. Forsyth, 472 U.S. (1985); Nixon v.

Fitzgerald, 457 U.S. (1982) (recognizing an exception to the federal final

judgment rule codified at 28 U.S.C. § 1291 in immunity cases)). This

Jurisprudence, however, is not persuasive on Kentucky Courts. The Kentucky

Supreme Court bars legal procedures set forth to invoke and challenge the

denial of such a right and at the same time incorrectly applied this Court’s

jurisprudence as pertains to the Collateral Order Doctrine in Comm. v.

Farmer. (See Appendix F). That is, if a defendant, who invokes a CAPTA-based

immunity faces a bar on an evidentiary hearing, then faces another bar on a

pretrial dismissal, and yet another bar on interlocutory appeal, and must

endure the irreparable harm, the expense, the pain, and the suffering of a trial.

This begs the question, what good does CAPTA do? This is clearly not the

outcome the United States. Congress had in mind when enacted CAPTA.

By the current case law in Kentucky, the defendant must endure the

possibility of a potential conviction and penalty, and the cost of trial and appeal

only to then ultimately face the reality that immunity is an inquiry addressed

by the jury and not reviewable on appeal.

In addressing this ambivalence, the Kentucky Court of Appeals

expressed its frustration by holding that it cannot ignore the futility in an

appeal of the denial of immunity after a defendant’s conviction. The Court of

Appeals further explained that following a trial and conviction, any argument

that immunity was improperly denied would be subject to the harmless error

rule, and the defendant required to overcome the strong preference in the law

for deferring to a jury’s verdict. (Appendix G, page 4). “It is simply nonsensical

for the [Kentucky] General Assembly to have clearly established immunity

from prosecution that is to be determined by the court, but leave a defendant

denied immunity without an opportunity for meaningful judicial review.” Id.

Ultimately, the Kentucky Court of Appeal granted a review from a trial court’s

order denying immunity citing the jurisprudence of the D.C. Circuit Court in

Stein v. U.S., 532 A.2d 641, 644 (D.C. 1987) reasoning that if a criminal

defendant is entitled to immunity, he cannot be tried and should be entitled to

an immediate review of the trial court’s decision.4 However, the Kentucky

Supreme Court reversed that decision holding that the Kentucky Court of

Appeals lacked statutory or constitutional jurisdiction over appeals from an

interlocutory order in a criminal case. (Appendix F ). That jurisprudence,

however, is in conflict with what has been established by this Court.

In Nixon 457 U.S., this Court held that a federal appellate court has

jurisdiction to review an interlocutory appeal involving immunity under a

narrow exception to the rule against interlocutory appeals. In Cohen v.

Beneficial Industrial Loan Corp. 337 U.S. (1949), this Court set a precedent

for, and recognized, the standards for a narrow example of interlocutory but

In Stein, the D.C. Circuit Court held that the trial court's order denying immunity is immediately

appealable as a collateral order.

appealable orders in which “finally determine claims of right separable from,

and collateral to, rights asserted in the action, [are] too important to be denied

review and too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated." Id at 546. In

Flanagan v. United States, 465 U.S. (1984), this Court addressed the collateral

order’s narrow and stringent, but possible, exceptions to the final judgment

rule for interlocutory appeals in criminal cases.

The exceptions to the collateral order as established by this Court in

Coopers & Lybrand v. Livesay, 437 U. S. (1978) says that “a trial court order

must (1) "conclusively determine the disputed question," (2) "resolve an

important issue completely separate from the merits of the action," and (3) "be

effectively unreviewable on appeal from a final judgment." Id at 463, 468. In

this case, the first prerequisite -- whether the trial court has addressed and

entered a final judgment on the issue has been indisputability established.

(Appendix D). The Petitioner, invoked immunity at the earliest stages of

proceedings under KRS 620.050 via a written motion, which was denied.

Therefore, the disputed question became whether the Petitioner was immune

from prosecution and liability under that particular statute. The Kentucky

trial court ruled on that question, and its ruling has become the law on that

case, not subject to reconsideration before final judgment. Id. The second

requirement-- whether the challenged ruling on the immunity issue is

completely separate from the merits of the criminal prosecution, had also been

established. This Court "has recognized that a question of immunity is

separate from the merits of the underlying action [ ] even though a reviewing

court must consider the [ ] factual allegations in resolving the immunity issue."

Mitchell 472 U.S. (footnote omitted). The inquiry of immunity under CAPTAbased state law is separate from the merits of the case because the plain

language of KRS 620.050 statute on which immunity was invoked, expressly

provides that a compliant person "shall have immunity from any liability, civil

or criminal, that might otherwise be incurred or imposed.” This provision

provides more than just a shield from the prosecution and a defense to the

criminal charge itself, but also a vindication from an imposed liability in a

retroactive manner. Regardless, Kentucky ignored these standards in the

interest of preserving its financial interest leaving Kentucky Children without

protection.

As mentioned earlier, the Kentucky Circuit Court’s opinion is the

opinion of a state court of last resort and represents the current law in

Kentucky; one that discourages citizens from reporting suspected child abuse.

One striking example is a Western Kentucky High School principal who was

facing criminal charges for failing to report suspected child abuse, has cited

such jurisprudence and managed to have charges against him dismissed. If

the case before the bar with this petition is allowed to stand, Kentucky will be

in the questionable position of criminally charging its citizens for reporting

suspected child abuse, and granting immunity for not reporting suspected child

abuse. Such a legal paradox must not be allowed to stand.

CAPTA require states to define child abuse and neglect in a way that is

consistent with that act, which defines the term as “at a minimum, any recent

act or failure to act on the part of a parent or caretaker, which results in death,

serious physical or emotional harm, sexual abuse or exploitation, or an act or

failure to act which presents an imminent risk of serious harm.” 42 U.S.C. §

5106a(b)(2)(B)(vii) (2016). It is clear that the United States Congress enacted

CAPTA in an effort to curb child abuse, not as a means for the states to siphon

federal funds. A review by this Court will clarify whether invoking CAPTAbased immunity is an exception to the collateral order doctrine and whether

Kentucky violates the United States Constitution in depriving its trial court of

the power to dismiss a misdemeanor charge based on an established right

extended by the state via an act of the United States Congress.

IV.

CERTIORARI

WILL

FORTIFY

THE

RIGHTS

INDIVIDUALS WHO REPORT SUSPECTED CHILD ABUSE

AGAINST RETALIATORY CONDUCT BY AGGRIEVED

PARTIES

A review by this Court will encourage citizens to report suspected child

abuse by defining their right to be tried in the district where their report is

filed, which will ultimately protect them from retaliatory prosecution by

aggrieved parties. The Sixth Amendment provides a guarantee of trial in the

state and district in which the crime was committed. In this case, Kentucky

prosecuted the Petitioner via a group of similarly-scripted criminal complaints,

none of which identifies the venue.

The Sixth Amendment also requires the element of venue to be alleged

in every indictment although it is not an element of the charged offense.

Evidently, Kentucky treats venue rules lightly. Yet this Court has cautioned

that the venue rules are not to be treated lightly. United States v. Johnson,

323 U.S. 273, 276 (1961).

In Kentucky and all other states, filing a statement reporting suspected

child abuse takes place via a centralized intake hotline. The case at bar is an

alleged false statement equivalent to crimes under 18 U.S.C. § 1001. In United

States v. Travis, 364 U.S. 631 (1961), this Court held that venue is proper in

the district of receiving a false statement. Kentucky Courts contradict this

jurisprudence in holding that venue is proper where the effect of a false

statement is felt. Appendix E.

Much like the United States Congress, the Kentucky legislature failed

to provide an explicit provision regarding venue for crimes of false statements.

This issue undermines the purpose of CAPTA and stifles citizens from

reporting suspected child abuse.

In Travis, 364 U.S., the central issue was whether venue was proper in

the place of mailing a false statement. This Court held that at the time of

mailing, the false statement was not within the jurisdiction of the government

and such cause was unactionable until the document was received by the

government.

This Court reasoned that a provision that governs a false

statement did not apply until the affidavit was in the files of the government

agency. In the case at bar, Kentucky’s venue of choice was neither the venue

of making the alleged false statement nor the venue of receiving it. It may

have been that the state selected Trimble County as the venue because there

was an assumption that a conviction would have been more easily obtained

there instead in a more proper venue.

Furthermore, a review will have a wide application and will help clarify

the law as it pertains to the definition of venue in cases involving “e-crimes.”

It will address a deeply flawed issue that characterizes Kentucky law as it

pertains to venue and will help in shielding individuals who report suspected

child abuse against retaliatory actions by disgruntled and supposedly

aggrieved parties. It will also help in centralizing the jurisdiction for

prosecuting these individuals to one district, which will possibly encourage

more citizens to report suspected child abuse.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of Certiorari should

be accepted.

Respectfully submitted,

_______________________

Michael Slaughter,

Counsel for Petitioner

P. O. Box 32

Westport, KY 40077.

Attny4u2@hotmail.com

(502) 225-5889

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.